Indira Dubey L/H. Prabhat Kumar Dubey, Kannauj V. D.C.I.T., Circle-2(1), Farrukhabad

ITA 289/AGR/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67489 (ITAT-AGRA)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2013
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 17-12-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 02-08-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: WRITTEN SUBMISSIONS
• Assessee Lawyers: WASEEM ARSHAD
• Keywords: Unexplained cash credit; Opportunity of being heard; Source of fund; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ITA NO. 289/AGRA/2013 ASSTT. YEAR : 2007-08 INDIRA DUBEY, VS. D.C.I.T., CIRCLE 2(1) LEGAL HEIR OF PRABHAT KUMAR DUBEY, FARRUKHABAD. MOHALLA TIWARIAN, CHHIBRAMAU, KANNAUJ.(PAN- AGKPD 0940 J). (APPELLANT) (RESPONDENT) APPELLANT BY : WRITTEN SUBMISSIONS RESPONDENT BY : SHRI WASEEM ARSHAD, SR. DR DATE OF HEARING : 17.12.2013 DATE OF PRONOUNCEMENT OF ORDER : 20.12.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A), MUZAFFARNAGAR DATED 05.02.2013 FOR THE ASSESSMENT Y EAR 2007-08. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF NOTICE. THE WRITTEN SUBMISSION IS FORWARDED BY THE ASSESSEE THR OUGH HIS RELATION ALONG WITH THE REQUEST FOR ADMISSION OF ADDITIONAL EVIDENCES, WHIC H IS TAKEN INTO CONSIDERATION. THE LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIE S BELOW. 3. ON GROUND NO.1, THE ASSESSEE CHALLENGED THE PASS ING OF EXPARTE ORDER BY THE LD. CIT(A). THE LD. CIT(A) SPECIFICALLY NOTED IN TH E APPELLATE ORDER THAT SEVERAL DATES WERE FIXED FOR HEARING, BUT DESPITE SERVICE, NONE APPEARED BEFORE HIM TO ITA NO. 289/AGRA/2013 2 ARGUE THE APPEAL. THE EXPARTE ORDER WAS ACCORDINGLY PASSED AND THE APPEAL WAS DECIDED ON THE BASIS OF THE MATERIAL AND EVIDENCE A VAILABLE ON RECORD. NOTHING IS STATED IN SUPPORT OF THIS GROUND OF APPEAL. IN THE ABSENCE OF ANY JUSTIFICATION FOR NON-COMPLIANCE BEFORE THE LD. CIT(A), WE DO NOT FIN D ANY MERIT IN THIS GROUND OF APPEAL OF THE ASSESSEE. THE SAME IS ACCORDINGLY DIS MISSED. 4. ON GROUND NO. 2, 3 & 4, THE ASSESSEE CHALLENGED THE ADDITION OF RS.1,50,000/- ON ACCOUNT OF UNEXPLAINED LOAN. THE A O ON EXAMINATION OF CASH FLOW STATEMENT FOUND THAT THE ASSESSEE HAS TAKEN LO AN OF RS.1,50,000/- WHICH WAS STATED TO BE RECEIVED FROM SHRI RAJESH KUMAR SHUKLA . THE ASSESSEE FAILED TO DISCLOSE PARTICULARS OF LENDER, HIS IDENTIFICATION, SOURCE OF FUND, CREDITWORTHINESS AND MODE OF PAYMENT. THEREFORE, ADDITION OF RS.1,50 ,000/- WAS MADE ON ACCOUNT OF UNEXPLAINED CREDIT. THE LD. CIT(A) ON THE SAME R EASONING CONFIRMED THE ADDITION. 4.1 THE ASSESSEE IN THE WRITTEN SUBMISSION MADE A R EQUEST FOR ADMISSION OF ADDITIONAL EVIDENCE. IT IS STATED THAT AFTER DEATH OF THE ASSESSEE, THE COUNSEL FOR ASSESSEE DECLINED TO APPEAR BEFORE THE TRIBUNAL AND A REQUEST IS MADE THAT NOW THE LEGAL HEIR HAS BROUGHT THE EVIDENCE TO PROVE IDENTI TY OF THE CREDITOR, HIS CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION . IT IS EXPLAINED THAT LOAN OF RS.1,50,000/- WAS OBTAINED IN THREE INSTALLMENTS OF RS.50,000/- EACH AND ONE CHEQUES OF RS.50,000/- WAS RECEIVED IN THE NAME OF INDIRA DUBEY WIFE OF ASSESSEE. TWO CHEQUES OF RS.50,000/- EACH WERE DEPOSITED IN T HE ACCOUNT OF THE ASSESSEE, ITA NO. 289/AGRA/2013 3 BUT ONE CHEQUES OF RS.50,000/- WAS CREDITED IN THE ACCOUNT OF SMT. INDIRA DUBEY. THE LOAN WAS ALSO REPAID. ALL THE TRANSACTIONS WERE CARRIED THROUGH BANKING CHANNEL. THE CREDITOR RAJESH KUMAR IS ASSESSED TO T AX AND COPY OF HIS PAN AND ACKNOWLEDGMENT OF FILING OF RETURN IS ALSO FILED AL ONG WITH THE BANK STATEMENT AND CONFIRMATION OF THE CREDITOR TO PROVE THAT HE WAS H AVING CREDITWORTHINESS TO GIVE LOAN TO THE ASSESSEE. IT WAS SUBMITTED THAT DUE TO BONA FIDE REASONS THOSE EVIDENCES COULD NOT BE PRODUCED BEFORE THE AUTHORITIES BELOW WHICH WERE BEYOND THE CONTROL OF THE ASSESSEE AND REQUEST IS MADE TO ADMIT THE SA ME FOR THE PURPOSE OF HEARING. REQUEST IS SUPPORTED BY THE AFFIDAVIT OF SMT. INDIR A DUBEY WIFE OF ASSESSEE. THE LD. DR HAS NO OBJECTION FOR ADMISSION OF ADDITIONAL EVIDENCE. HE HAS, HOWEVER, SUBMITTED THAT THE MATTER MAY BE REMANDED TO THE AO FOR EXAMINATION OF ADDITIONAL EVIDENCES. 5. ON CONSIDERATION OF THE ABOVE FACTS, WE ARE OF T HE VIEW, THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE AO. THE ADDITIO NAL EVIDENCES HAVE BEEN FURNISHED BY THE LEGAL HEIR OF THE ASSESSEE, WHICH ARE CONFIRMATION OF THE CREDITOR, HIS PAN AND ACKNOWLEDGMENT OF FILING OF RETURN BY T HE CREDITOR AND COPY OF HIS BANK ACCOUNT. IT WOULD SHOW THAT ONE OF THE CHEQUES WAS EVEN RECEIVED FROM THE CREDITOR IN THE NAME OF SMT. INDIRA DUBEY, THEREFOR E, SUCH AMOUNT COULD NOT HAVE BEEN CONSIDERED IN THE CASE OF ASSESSEE. ALL THE AB OVE ADDITIONAL EVIDENCES ARE NECESSARY FOR DECIDING THE ISSUE AT HAND. THE ASSES SEE IS REPRESENTED IN APPEAL BY HIS LEGAL HEIR AND CONSIDERING THE SUBMISSIONS OF T HE LD. DR, WE ARE OF THE VIEW ITA NO. 289/AGRA/2013 4 THAT IN THE INTEREST OF SUBSTANTIAL CAUSE AND FOR P ROPER ADJUDICATION OF THE MATTER, THE DOCUMENTS PRODUCED BY THE LEGAL HEIR SHALL HAVE TO BE ADMITTED FOR HEARING AND THE MATTER COULD BE RESTORED TO THE AO FOR CONSIDER ING THE ADDITIONAL EVIDENCES. WE ARE FORTIFIED IN OUR VIEW BY THE JUDGMENT OF HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS. TEXT HUNDRED INDIA PVT. LIMITED, 35 1 ITR 57, IN WHICH THE TRIBUNAL FOUND THE ADDITIONAL EVIDENCES WERE NECESS ARY FOR PROPER ADJUDICATION OF THE MATTER AND ADMITTED THE SAME IN THE INTEREST OF SUBSTANTIAL CAUSE. HONBLE DELHI HIGH COURT CONFIRMED THE VIEW OF TRIBUNAL AND DISMI SSED THE APPEAL OF THE REVENUE. IN VIEW OF THE ABOVE, WE ADMIT THE ADDITIO NAL EVIDENCES AND SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THIS IS SUE TO THE FILE OF THE AO WITH DIRECTION TO RE-DECIDE THIS ISSUE IN THE LIGHT OF A DDITIONAL EVIDENCES SO ADMITTED BY US. THE ASSESSEE IS DIRECTED TO PRODUCE COPIES OF T HESE ADDITIONAL EVIDENCES BEFORE THE AO FOR ADJUDICATION OF THE ISSUE AND THE AO SHA LL GIVE PROPER AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN THE RESULT, THESE GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 6. ON GROUND NO. 5, THE ASSESSEE CHALLENGED THE ADD ITION OF RS.37,703/- ON ACCOUNT OF ESTIMATION OF SIMILAR EXPENSES. THE ASSE SSEE HAS SHOWN TOTAL HOUSEHOLD WITHDRAWALS OF RS.2,12,297/-, OUT OF WHICH THE ASSE SSEE HAS MADE INVESTMENT IN BOND IN A SUM OF RS.1,00,000/- AND RS.1,12,297/- RE MAINED WITH THE ASSESSEE FOR HOUSEHOLD EXPENSES. THE AO AFTER CONSIDERING INFLAT ION IN PRICE, STANDARD OF LIVING ETC. FOUND THE SIMILAR EXPENSES ON A VERY LOW SIDE AND ESTIMATED THE SAME AT ITA NO. 289/AGRA/2013 5 RS.15,000/- PER MONTH AND ESTIMATED THE HOUSEHOLD E XPENSES AT RS.1,80,000/-. THE DIFFERENCE OF RS.67,703/- WAS ADDED. THE LD. CIT(A) REDUCED THE ADDITION OF RS.37,703/- BY GRANTING RELIEF OF RS.30,000/- TO TH E ASSESSEE. THE LD. CIT(A) ALSO NOTED THAT THE ASSESSEE HAS NOT FURNISHED THE DETAI LS OF FAMILY SIZE ETC. EVEN BEFORE US, NO DETAILS OF FAMILY AND OTHER EXPENSES INCURRE D BY THE ASSESSEE HAVE BEEN EXPLAINED. THIS GROUND IS ALSO NOT PRESSED IN THE W RITTEN SUBMISSIONS. SAME IS ACCORDINGLY DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (PRAMOD KUMAR) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY